United States v. Funds in the Amount of $100,120.00

• Decision Date: 22 August 2018
• Docket Number: No. 16-3238,16-3238
• Citation: 901 F.3d 758
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. FUNDS IN THE AMOUNT OF ONE HUNDRED THOUSAND AND ONE HUNDRED TWENTY DOLLARS ($100,120.00), Defendant. Appeal of: Nicholas P. Marrocco and Vincent J. Fallon.
• Court: U.S. Court of Appeals — Seventh Circuit

901 F.3d 758

UNITED STATES of America, Plaintiff-Appellee,

v.FUNDS IN THE AMOUNT OF ONE HUNDRED THOUSAND AND ONE HUNDRED TWENTY DOLLARS ($100,120.00), Defendant.

Appeal of: Nicholas P. Marrocco and Vincent J. Fallon.

No. 16-3238

United States Court of Appeals, Seventh Circuit.

Argued May 31, 2018

Decided August 22, 2018

Craig A. Oswald, Attorney, Office of the United States Attorney, Chicago, IL, for Plaintiff-Appellee.

Brian Elliott King, Attorney, Stephen M. Komie, Attorney, Komie & Associates, Chicago, IL, for Appellants Nicholas P. Marrocco And Vincent J. Fallon

Before Flaum, Manion, and Hamilton, Circuit Judges.

Manion, Circuit Judge.

In December 2002, law enforcement seized $100,120 in United States currency from a passenger on an Amtrak train. The federal government initiated a civil forfeiture proceeding against the currency. The passenger and the owner of the funds, neither of whom were ever charged with committing any crime related to the funds, joined the suit as claimants. After fourteen years and two appeals, the case went to a jury. The jury found the currency was substantially connected to a drug transaction and entered a verdict for the government. The claimants filed multiple post-trial motions, all of which the district court denied. The case now comes to us for the third time. We affirm.

I.

A. Background

"Because a jury has rendered a verdict, we view the evidence in the light most favorable to that verdict." Matthews v. Wis. Energy Corp. , 642 F.3d 565, 567 (7th Cir. 2011).

On December 6, 2002, Officer Eric Romano of the Amtrak Police (a member of the Drug Enforcement Administration Chicago Transportation Interdiction Taskforce) arrived at work at Union Station in Chicago and pulled up the manifests for the long-distance trains leaving that day. One reservation that caught his eye was Vincent Fallon’s. Fallon was traveling to Seattle, a city Officer Romano knew as a source for drugs. Also, Fallon had used cash to purchase a one-way ticket, with a private bedroom, only two days earlier. Because Fallon’s conduct fit a drug-courier profile, Officer Romano decided to question him.

Officer Romano and Officer Sterling Terry of the Chicago Police Department

approached Fallon in his bedroom on the train. Officer Romano noticed Fallon had two bags: a duffel bag and a briefcase. After introducing himself, Officer Romano asked Fallon why he was traveling to Seattle. Fallon said he was going to see "a lady friend." Officer Romano asked Fallon if he was carrying weapons, drugs, or large amounts of currency. Fallon responded he was not.

The conversation turned to Fallon’s bags. Officer Romano asked Fallon what was inside the briefcase, which was locked. Fallon, who was sweating and trembling, said it contained personal items and that he had packed it, but he did not have a key. When pressed on its contents, Fallon said the briefcase contained $50,000. Officer Romano asked him again why he was going to Seattle, and this time Fallon said he was potentially going to put a down payment on a house.

Officer Romano decided he was going to take the briefcase for further investigation at the Amtrak Police office. A drug dog was summoned. Before it arrived, Officer Romano opened the briefcase and observed it contained United States currency. When the dog arrived, Officer Romano spoke with the dog’s handler and hid the briefcase in the office’s roll-call room. The handler gave the dog the instruction to "fetch dope," and the dog ultimately found and alerted on the briefcase. Officer Romano picked the bag up from the floor, and he and Officer Terry counted out nineteen bundles of cash. They placed the cash in an evidence bag and handed Fallon, who had accompanied them to the office, a receipt. Fallon was then free to go.

The money was taken to the DEA headquarters in Chicago and placed in an evidence vault. The seizure had taken place on a Friday, so on the following Monday Officers Romano and Terry took the currency to LaSalle National Bank to have it counted. The bank counted out $100,120 and issued a cashier’s check to the government in that amount. The physical currency was not retained.

B. Procedural History

On May 28, 2003, the United States filed a civil complaint seeking forfeiture of the funds. Fallon and Nicholas Marrocco, the undisputed actual owner of the funds, joined the action as claimants. More than five years after the government filed its complaint, the case found its way to us for the first time. The district court had suppressed the currency and the results of the dog sniff as evidence acquired in violation of the Fourth Amendment, and the government appealed. We reversed. United States v. Marrocco , 578 F.3d 627, 642 (7th Cir. 2009).

Back in the district court, the claimants moved to have the dog-sniff evidence excluded from consideration on spoliation grounds. The claimants argued the government had intentionally destroyed the currency in bad faith when it converted the currency to a cashier’s check, thus depriving the claimants of the opportunity to perform chemical tests to determine the presence or absence of drugs. Judge Bucklo denied the motion, calling it "without merit." Judge Bucklo accepted the government’s contention that the officers had deposited the currency in conformity with a Department of Justice policy not to hold large amounts of cash, so she found no bad faith. Additionally, she questioned what good chemical testing would have done for the claimants because they were already arguing that all currency is tainted with trace amounts of narcotics.¹

The district court granted summary judgment to the government, and the claimants appealed. While they did raise their Fourth Amendment suppression argument from the first appeal, they did not raise the spoliation issue. We reversed summary judgment, concluding that genuine issues of material fact existed about how Marrocco allegedly accumulated the money and the reliability of the dog sniff. United States v. $100,120 , 730 F.3d 711, 727 (7th Cir. 2013).

On remand, the case, now assigned to Judge Tharp, moved toward trial. In anticipation of trial, the claimants submitted another spoliation motion, asking Judge Tharp to bar the government from presenting evidence relating to the dog sniff or at the least to give a spoliation instruction to the jury.

Unlike Judge Bucklo, Judge Tharp agreed with the claimants that the government had destroyed the currency in bad faith. He rejected the government’s assertion that it was only following a policy, finding no policy "that currency with evidentiary value should be deposited in banks rather than be preserved as evidence." Nevertheless, he did not bar the government from presenting the dog-sniff evidence, nor did he agree to give a spoliation instruction to the jury, because he felt constrained by the law-of-the-case doctrine. Because Judge Bucklo had concluded there was no spoliation, and the claimants had not contested that decision in their appeal of summary judgment, Judge Tharp held the claimants had "forfeited any right to subsequently challenge that ruling," and denied the motion.

The trial began on January 25, 2016. In the government’s case in chief, the jury heard testimony from Officer Romano about the events of December 6, 2002, which we recounted above. The jury also heard testimony on drug-dog training and testimony that the drug dog involved in this case had a perfect record in 116 searches, including a failure to alert to currency not tainted with drugs.

The government also called Marrocco to the stand. He testified the money was his—the result of saving cash he had earned working various jobs. But the government presented evidence suggesting that, based on his income as stated on tax documents and his expenses as stated in a discovery response, he could not have saved that much money. He claimed to have kept the money as cash because he did not have a bank account. He testified that credit-card issues from when he was in college (he was thirty-two years old at the time of the seizure) had prevented him from opening an account.

About why he put his purported savings in Fallon’s hands to take to Seattle on a train, Marrocco said he wanted to invest in a restaurant or bar on the West Coast. He testified there were "specific places" he was looking at, but said nothing more definite than that. Marrocco testified he put $127,000 in the briefcase and gave it to Fallon the day before the seizure. The plan was for Fallon to take the money to Seattle and place it in a safety-deposit box. Marrocco, who had never himself traveled by train, said he chose to send the money by train because cars can break down and flying could result in delays.

At the close of the government’s case, the claimants made a motion for judgment as a matter of law,² which the court denied.

The claimants then put on their case. The claimants presented testimony from Dr. Lawrence Myers, the founder and director of the Institute for Biological Detection Systems at Auburn University, and David Kroyer, a dog trainer from Texas. Both questioned the reliability of the drug dog’s alert. Marrocco also testified, again claiming the money was the fruit of years of saving.

Before closing arguments, the court instructed the jury. The instructions stated the government was required to prove by a preponderance of the evidence that the $100,120 was substantially connected to an unlawful drug transaction. The instructions also stated the government was not required to prove a connection to a specific drug transaction, only a connection to "some" transaction, and the government was not required to prove the claimants themselves were involved in any unlawful conduct.

After the jury received its instructions, the parties made closing arguments and the court submitted the case to the jury. Despite a request from the claimants, the court did not provide the jury with a special verdict form with interrogatories.

At some point in the deliberations, the jury,...